A U.S. judge has denied Samsung's request for a retrial in a patent dispute with Apple, but she also chastised Apple's lawyers for making the Korean firm's "foreignness" an issue in closing remarks to the jury.

The order from Judge Lucy Koh late Friday means a damages award against Samsung of $290 million still stands. But she clearly took issue with the way Apple summed up its case to the jury, saying it suggested an "American-versus-non-American theme."

The case at the District Court in San Jose, California, is the one in which Apple was initially awarded just over a billion dollars in damages in August 2012. Koh struck down $410 million of the award, partly because the jury hadn't calculated it properly, and ordered a new trial to determine the correct damages.

The new trial ended in November with the $290 million award to Apple, but Samsung asked for another retrial, in part, it argued, because Apple's lawyers had appealed to "racial, ethnic, and national origin prejudice."

It highlighted portions of Apple's closing argument in particular.

"When I was young, I used to watch television on televisions that were manufactured in the United States," an Apple attorney told the jury. "Magnavox, Motorola, RCA. ... They were inventors. They were like the Apple and Google today.

"But they didnt protect their intellectual property," the Apple attorney said. "They couldnt protect their ideas. And you all know the result. There are no American television manufacturers today."

In her order Friday, Koh wrote several times that she found the remarks "troubling."

"Counsels argument clearly suggested an us-versus-them, American-versus-non-American theme to the jury, which could have evoked national origin prejudice," she wrote.

The impact of the remarks is minimized by the "cold transcript," she wrote," which "elides counsels strategic and effective pauses, timed in a way that created silence for listeners to connect the dots and make troubling inferences."

She also noted the "context of the courtroom," in which the seats behind the attorneys were "filled with client representatives with obvious differences in terms of racial and ethnic backgrounds."

Moreover, Koh wrote, the impact of the remarks must be considered in the wider context of whether juries in the U.S. can "fairly adjudicate patent disputes between American companies and foreign companies."

She cited a study which found that in jury trials, the win rates of foreign firms against domestic infringers (38 percent), are significantly lower than wins by domestic firms against foreign infringers (82%). In contrast, in cases decided by judges rather than juries, "the patentee win rate is almost identical."

Despite that, Koh concluded the remarks by Apple's attorneys did not warrant another trial. The misconduct did not "permeate the proceedings," she wrote, but was "confined to a few seconds of the closing argument." She also found there was no evidence that the jury had been influenced by the "problematic comments."

After Samsung complained about the remarks in court and made its plea for a retrial, Koh brought the jurors back in and re-read the instruction that they should "not be motivated by sympathies or prejudice."

[T]he law presumes that jurors carefully follow the instructions given to them, Koh wrote in her order Friday, citing an opinion from the Ninth Circuit Court of Appeals.

She also noted that she had given Samsung the option to bring the jury back and rebut Apple's remarks.

Nevertheless, she was clearly unhappy with how Apple concluded its case, and reminded both sides they'll be back in court soon for another trial about a different set of products.

"Next month, these parties and these counsel are set to go to trial for a third time. Counsel are encouraged to be mindful of the important role that lawyers play in the actual and perceived fairness of our legal system," Koh wrote.

Her order Friday also rejected a motion from Apple seeking additional damages, saying it has to await the outcome of Samsung's appeal. And she denied motions from Samsung seeking to reduce the jury's award.

James Niccolai covers data centers and general technology news for IDG News Service. Follow James on Twitter at @jniccolai. James's e-mail address is james_niccolai@idg.com

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